Forgery & Related Offenses

2C:21-1. Forgery and related offenses

a. Forgery. A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:

Alters or changes any writing of another without his authorization;

Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act or of a fictitious person, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or

Utters any writing which he knows to be forged in a manner specified in paragraph (1) or (2).

As used in this section, “information” includes, but is not limited to, personal identifying information as defined in subsection v. of N.J.S.2C:20- 1.

b. Grading of forgery. Forgery is a crime of the third degree if the writing is or purports to be part of an issue of money, securities, postage or revenue stamps, or other instruments, certificates or licenses issued by the government, New Jersey Prescription Blanks as referred to in R.S.45:14-14, or part of an issue of stock, bonds or other instruments representing interest in or claims against any property or enterprise, personal identifying information or an access device. Forgery is a crime of the third degree if the writing is or purports to be a check. Forgery is a crime of the third degree if the writing is or purports to be 15 or more forged or altered retail sales receipts or universal product code labels.

Otherwise forgery is a crime of the fourth degree.

c. Possession of forgery devices. A person is guilty of possession of forgery devices, a crime of the third degree, when with purpose to use, or to aid or permit another to use the same for purposes of forging written instruments, including access devices and personal identifying information, he makes or possesses any device, apparatus, equipment, computer, computer equipment, computer software or article specially designed or adapted to such use.

(A) History and Scope

This chapter of the Code of Criminal Justice defines and proscribes a wide variety of fraudulent practices. This chapter has expanded the coverage of the criminal law to encompass areas of deceitful conduct that were not previously prohibited by any statutes in New Jersey. The scope of the crime of forgery has been expanded. The offense applies to any “writing.” “Writing” is defined comprehensively to include printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, access devices and other symbols of value, right, privilege or identification including retail sales receipts, universal product code (UPC) labels and checks. It applies without limitation to forged copied or imitated checks.[FN1] An “access device” is a telephone calling card number, credit card number, account number, mobile identification number, electronic serial number, personal identification number, or any other data intended to control or limit access to telecommunications or other computer networks in either human readable or computer readable form. This includes either copies or originals that can be used to obtain telephone service.[FN2] Forgery is not limited to documents having legal or evidentiary significance. Doctor’s prescriptions, diplomas and professional certificates are encompassed within this offense as well as private records such as diaries, books of account and letters.[FN3] This comprehensive definition makes it possible to punish forgeries which are harmful to the good name or reputation of the purported author or which misrepresent the sentiments, opinion, character, conduct, prospects or interests of others.[FN4] For the forgery crimes “information” includes but is not limited to personal identifying information.[FN5] “Personal identifying information” means any name, number or other information that may be used, alone or in conjunction with any other information, to identify a specific individual and includes, but is not limited to, the name, address, telephone number, date of birth, social security number, official State issued identification number, employer or taxpayer number, place of employment, employee identification number, demand deposit account number, savings account number, credit card number, mother’s maiden name, unique biometric data, such as fingerprint, voice print, retina or iris image or other unique physical representation, or unique electronic identification number, address or routing code of the individual.[FN6]

(B) Culpability

The culpability requirements of this offense are satisfied by proof that the defendant acted with a purpose to defraud or injure another. This encompasses proof of a purpose to injure the reputation or integrity of a person as well as a purpose to cause pecuniary gain or loss. In addition, the culpability requirement is satisfied by proof that the defendant acted with knowledge that he is facilitating a fraud or injury to be perpetrated by another person.[FN7] The forger commits the offense even if he gives the document to another to pass as authentic. The requisite knowledge or purpose may be inferred from the fact that the defendant is attempting to cash a forged instrument.[FN8] In order to obtain a conviction for forgery, the state need not prove that any specific person was injured or defrauded. It is sufficient to prove the proscribed conduct, such as the altering or uttering, was done with a purpose to defraud anyone in general[FN9] or with a purpose to defraud a governmental unit.[FN10]

(C) Types of Conduct which Constitute Forgery

(i) Altering or Changing Writing of Another

There are three types of conduct which constitute forgery. The first is altering or changing any writing of another without his authorization.[FN11] The Code has no requirement that it be proved that the alteration was material. The prior statute relating to forgery also had no requirement that the alteration be material.[FN12] This requirement that the alteration be material was read into the statute under the prior law, and it was held that the materiality of the alteration was a matter of law for the court.[FN13] It is questionable that the same approach can be taken under the present law which reaches the forgery of private documents or records. The alteration may have no legal effect but still have a capacity to injure one. It has been suggested that the culpability requirement of a purpose to defraud or injure or alternatively of knowledge of facilitating a fraud is a sufficient measure of the propriety of applying criminal sanctions.[FN14] If the alteration were non-material, there would be no proof of a purpose to defraud or a knowledge of a facilitation of a fraud. The methods of altering are only limited by human ingenuity. Altering has been committed by pasting words over originals[FN15] or erasing.[FN16]

(ii) Issuing a Writing that Purports to be the Writing of Another

The second type of conduct proscribed by the forgery statute is the making, completing, executing, authenticating, issuing or transferring any writing in order that it purports to be the act of another who did not authorize that act.[FN17] In addition, this same conduct is proscribed if the writing purports to be the act of another when in fact that person is fictitious.[FN18] A fictitious person can be a fictitious corporation.[FN19] In either case the state must prove that the person or corporation is fictitious.[FN20] It has been held that forgery does not occur when a fictitious name appears as the payee and the fictitious name was used at the request of the actual payee with the knowledge of the maker as well as the person who cashed the check. A check which is made payable to a fictitious or nonexistent person is treated as a check made payable to bearer when the maker of the check knows that the payee is either a fictitious or nonexistent person.[FN21]

(a) Writing Purports to be Issued at Time or Place Other than in Fact is True

Within this second category of proscribed conduct is the making, completing, executing, authenticating, issuing or transferring any writing, so that it purports to be executed at a time or place or in a numbered sequence other than in fact was the case or to be a copy of the original when in fact no original exists.[ FN22] The touchstone of this category of proscribed conduct is that the acts relate to the authenticity of the writing. A document is not forged merely because it contains misrepresentations. If the document is still the document it purports to be it is not a forgery. A writing will be forged if it was endorsed by an agent who lacked the authority to make the endorsement or if it was issued by an agent who lacked the authority to issue the writing.[ FN23]

(iii) Uttering Forged Writing

The third type of proscribed conduct is the uttering of any writing which the defendant knows to be forged in any of the prohibited manners just discussed.[FN24] Uttering which is the offering of an instrument as genuine accompanied by words or conduct to indicate it is genuine includes the display of the writing without issuing it.[FN25] It is not necessary to prove that a person was injured or defrauded for there to be an uttering of forged instruments.[FN26] The state need not prove that the defendant obtained anything or injured anyone as a consequence of the forgery.[FN27] If a person utters five checks at one time, it is a single transaction, and it constitutes one offense.[FN28]

(D) Defense of Consent

Consent is a defense to a charge of altering or changing another’s writing. Ratification after the act will not render the alteration or change noncriminal.[FN29]

(E) Merger and Lesser Included Offenses

If in fact the uttering is successful and the defendant obtains money as a consequence of the forgery or fraud, the forgery or fraud offense merges into the theft charge.[FN30] A conviction for theft by deception by means of uttering a forged instrument merged with the conviction for forgery.[FN31] Convictions of forgery and attempt to obtain a controlled dangerous substance by fraud merged for sentencing.[FN31.05] A person who is charged in an indictment with the offense of uttering a forged check cannot be convicted of the offense of passing a check knowing that it will not be honored by the drawee,[FN32] unless there is a separate charge in the indictment. The passing a bad check offense requires proof of the element of knowledge that the check will not be honored by the drawee. This is not an element of the forgery offense.[FN33] Conduct falling within the proscriptions of the anti-piracy section of the Code cannot be prosecuted under the more general forgery provisions of the Code relating to writings or objects.[FN34]

(F) Degree of Crime

Forgery is a crime of the third degree if the writing is or purports to be a document issued by the government including money, a New Jersey Prescription Blank or part of an issue of stock, bonds or other instruments representing an interest or claim against any property or enterprise, or personal identifying information or access device.[FN35] This section was amended in 2001 to create two additional instances when forgery is a crime of the third degree. If the writing is or purports to be a check, it is a crime of the third degree. It is a crime of the third degree if the writing is or purports to be 15 or more forged or altered retail sales receipts or universal product code labels.[FN36] In all other cases forgery is a crime of the fourth degree.[FN37] It has been held that the forgery of a name to a savings account withdrawal slip is not the forgery of a writing which purports to be an issue of money. Consequently, it is a crime of the fourth degree.[FN38]

(G) Material Elements

In a prosecution for forgery the state must prove three material elements. First, it must prove that defendant acted with a purpose to defraud or injure another or with knowledge that he was aiding another to injure or defraud a third person. Second, it must be proved that there was a writing of another. Third, it must be proved that the writing was altered by defendant without consent, or the writing must have been completed, executed, authenticated, issued or transferred in one of five specified fraudulent ways, or it must have been uttered with knowledge of the alteration or fraudulent practice done to the writing.

(H) Possession of Forgery Devices

This section of the Code also proscribes the related behavior of possession of forgery devices.[FN39] The definition of forgery device has been expanded. It now includes devices for the purpose forging written instruments, including access devices and personal identifying information. The offense encompasses making or possessing any device apparatus, equipment, computer, computer equipment, computer software or article specially designed for such use.[FN40] It is a third degree crime. There are three material elements to this offense. First, the device must be specially designed or adapted for use in forgery This includes devices for the purpose of forging access devices, or computer, computer equipment, computer software or articles specifically designed or adapted for the purpose of forging written instruments. Second, the defendant must either have possessed or made the device. Third, the defendant must have had the purpose to use, aid or permit another to use the device for the purpose of forging written instruments.

[FN3] This changes the prior law which limited the offense to documents having a legal effect on public records. N.J.S.A. 2A:109-1 (repealed 1979).

[FN4] Report of the New Jersey Criminal Law Revision Commission, The New Jersey Penal Code: Commentary (1971) 238.

[FN5] N.J.S.A. 2C:21-1(a)(3).

[FN6] N.J.S.A. 2C:20-1(v).

[FN7] N.J.S.A. 2C:21-1(a). [Add to end of footnote:] State v. Felsen, 383 N.J. Super. 154, 164, 890 A.2d 1029 (App. Div. 2006). It is not necessary that the defendant act with another for this offense to be committed.

[FN21] State v. Weigel, 194 N.J.Super. 451, 461, 477 A.2d 372, 377 (App. Div. 1984). The dissent would have permitted a conviction if the State could have proved the transactions facilitated the defendant’s disposal of toxic substances which wrongfully exposed the public to hazardous waste.

[FN39] N.J.S.A. 2C:21-1(c). This offense does not appear in the Model Penal Code but a person in possession of these devices could be prosecuted under the attempt provisions of the Model Penal Code.

[FN40] N.J.S.A. 2C:21-1(c).

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